41:0250(25)AR - - VA Medical Center and AFGE Local 1168 - - 1991 FLRAdec AR - - v41 p250



[ v41 p250 ]
41:0250(25)AR
The decision of the Authority follows:


41 FLRA No. 25

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1168

(Union)

0-AR-2054

DECISION

June 18, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator A. Thomas Van Wart, II, filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions.

The Arbitrator determined that three grievants' performance ratings should be changed from "fully successful" to "highly successful." The Arbitrator also remanded to the Agency the question of whether the grievants should be recommended for monetary awards.

For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

Three grievants, employees in the Agency's Engineering Department, Boiler Room Operations and Control, filed grievances disputing their "fully successful" performance ratings for the period April 1, 1988, through March 31, 1989. The grievants asserted that "they had previously received '[o]utstanding' evaluations and were arbitrarily reduced in their Performance Appraisal" for the rating period. Award at 2. The grievances were submitted to arbitration on the following issue:

Did the [A]gency breach the Agreement between the parties in giving a "Fully Satisfactory" rating for the period involved in the dispute, . . . and if so, did the agency's asserted or alleged non-compliance create a presumption of "[o]utstanding" rating in view of the Grievants' prior ratings?

Id. at 1.

Before the Arbitrator, the grievants asserted that they were entitled to "outstanding" ratings "as a result of their efforts during [a] rating period that was marked by a set of unusual circumstances[.]" Id. at 7. The grievants argued further that the Agency violated the parties' collective bargaining agreement by failing to provide them with copies of their performance standards and by failing to conduct progress reviews during the rating period.

The Agency acknowledged to the Arbitrator that it failed to conduct progress reviews and to provide the grievants with copies of their performance standards, as required by the parties' agreement. The Agency asserted, however, that its violations of the parties' agreement did not prejudice the grievants. The Agency also asserted that the grievants' "failure to properly maintain logs related to the boiler" was the "justification for the lower rating and evidence of less than 'outstanding' performance." Id. at 14.

The Arbitrator concluded that the grievants had not improperly been denied "outstanding" ratings. The Arbitrator rejected, in this regard, the grievants' claim that they were entitled to "outstanding" ratings because the Agency failed to provide the grievants with copies of their performance standards and failed to conduct progress reviews. The Arbitrator concluded that the Agency's failure to comply with the parties' agreement was not a "persistent, pervasive practice" but, instead, resulted from unusual circumstances during the rating year. Id. at 11.

The Arbitrator also concluded, however, that the Agency failed to provide "any rationale" for its decision to lower the grievants' ratings from the previous year. Id. at 14. The Arbitrator noted that the Agency did not inform the grievants of any performance deficiencies during the rating year. The Arbitrator also noted the grievants' uncontradicted testimony that they maintained boiler logs according to supervisory instructions and concluded that, if the grievants' ratings resulted from their failure to keep proper logs, "it was incumbent upon the Agency to comply with the contractual obligation to provide a copy of the performance standards for the job, note deficiencies in performance, as well as hold a progress review to correct such deficiencies." Id. at 15. As the Agency did not comply with its contractual obligations, the Arbitrator concluded that any failure to keep proper logs "should not be used adversely" against the grievants. Id.

Finally, the Arbitrator noted that Article 32, Section 5 of the parties' agreement provided that employees who are rated as "highly successful" will be reviewed to determine whether they should be recommended for a monetary award. The Arbitrator stated he would remand to the Agency the question of whether the grievants should receive monetary awards.

The Arbitrator issued the following award:

The grievance is denied in part and sustained in part. Grievants['] rating . . . will be changed from "Fully Successful" to "Highly Successful." The Agency will comply with its contractual requirements in the future and provide a copy of the performance standards and hold a progress review for all affected employees when required. That portion of the claim as set forth above will be remanded back to the Agency for final disposition.

Id. at 16.

III. Agency's Exceptions

The Agency filed two exceptions to the Arbitrator's award. First, the Agency argues that the Arbitrator's award conflicts with its rights to direct employees and assign work, under section 7106(a)(2)(A) and (B) of the Statute, because the Arbitrator improperly substituted his judgment for the Agency's in determining what the grievants' performance ratings should be. The Agency relies on Social Security Administration and American Federation of Government Employees, Local Union 1923, 25 FLRA 513 (1987) (SSA I), and Health Care Financing Administration and American Federation of Government Employees, Local 1923, 25 FLRA 725 (1987) (HCFA).

Second, the Agency argues that the Arbitrator's cancellation of the grievants' "fully successful" ratings is improper because the Arbitrator failed to find that the Agency erred in applying the performance standards to the grievants' work. The Agency argues, in this regard, that the Arbitrator failed to specify how the grievants' performance justified a "highly successful" rating.

IV. Analysis and Conclusions

In Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156 (1988) (SSA II), the Authority reexamined the remedial authority of arbitrators in performance appraisal matters. Subsequently, in U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 328 (1990) (SSA III), the Authority described SSA II as "establish[ing] a two-prong test":

First, an arbitrator must find that management has not applied the established standards or has applied them in violation of law, regulation, or a provision of the parties' collective bargaining agreement. If that finding is made, an arbitrator may cancel the grievant's performance appraisal or rating. Second, if the arbitrator is able to determine based on the record what the performance appraisal or rating would have been had management applied the correct standard or if the violation had not occurred, the arbitrator may order management to grant that appraisal or rating. If the arbitrator is unable to determine what the grievant's rating would have been, he must remand the case to management for reevaluation.

SSA III, 34 FLRA at 328.

The Agency relies on SSA I and HCFA in support of its first exception. The Agency asserts correctly that SSA I and HCFA establish that arbitral authority in performance appraisal disputes is limited. The Authority noted in SSA II, however, that prior decisions limiting arbitral authority in performance appraisal disputes would no longer be followed. SSA II, 30 FLRA at 1162. Accordingly, the Agency's reliance on SSA I and HCFA is misplaced and provides no basis for finding the award deficient.

We also conclude that the award satisfies both prongs of the test established in SSA II. As to the first prong, it is clear that the Arbitrator found that the Agency applied the grievants' performance standards in violation of the parties' collective bargaining agreement. In fact, the Agency conceded before the Arbitrator that it violated the parties' agreement by failing to conduct progress reviews and by failing to provide the grievants with copies of their performance standards. The Arbitrator concluded that if the grievants' failure to keep proper logs was the basis for their ratings, "it was incumbent upon the Agency to comply with the contractual obligation . . . ." Award at 15.

An arbitrator may cancel a performance rating if the arbitrator determines that "management has not applied the established standards or has applied them in violation of law, regulation, or a provision" in a collective bargaining agreement. SSA III, 34 FLRA at 328. Accordingly, the Arbitrator properly cancelled the grievants' "fully successful" performance ratings.

As to the second prong of the SSA II test, the Arbitrator found that the disputed ratings should be changed from "fully successful" to "highly successful." The Arbitrator stated, in this regard, that the Agency failed to provide "any rationale" for its decision to lower the grievants' ratings from the previous year. Award at 14. The Arbitrator noted that "records during the rating period contained no negative entries, no criticism, no stated failures or deficiencies." Id. at 12. Moreover,